Thomas v. Cate

Filing 6

ORDER by Judge Claudia Wilken DENYING PETITIONERS 5 MOTION TO DIRECT STATE COURT TO PROVIDE TRIAL TRANSCRIPTS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 12/28/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 LARRY DARNELL THOMAS, 4 Petitioner, 5 ORDER DENYING PETITIONER’S MOTION TO DIRECT STATE COURT TO PROVIDE TRIAL TRANSCRIPTS v. 6 No. C 11-4709 CW (PR) MATTHEW CATE, 7 8 Respondent. (Docket no. 5) ________________________________/ 9 United States District Court For the Northern District of California 10 Petitioner, a state prisoner, filed this pro se petition for 11 a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging 12 his state conviction. 13 motion to stay the petition while he exhausts his ineffective 14 assistance of counsel claims in state court. On October 26, 2011, the Court granted his 15 Now pending is Petitioner’s motion asking this Court to 16 direct the California superior court to provide him with a missing 17 portion of his state trial transcripts or, alternatively, to grant 18 summary judgment in his favor. 19 (1) that he was never provided with a transcript of the first 20 portion (Volume I) of his state criminal and trial proceedings; 21 (2) neither his trial nor appellate attorney have a copy of the 22 transcript; (3) his former attorney has attempted to assist him in 23 obtaining a copy of Volume I but has been unsuccessful; and 24 (4) even the superior court does not have a copy of the 25 transcript. 26 first portion of the trial may not have been transcribed. 27 28 Specifically, Petitioner states Based on the above, Petitioner speculates that the The Court must deny Petitioner’s motion. Federal district courts are without power to issue mandamus to direct state courts, state judicial officers, or other state officials in the 2 performance of their duties. 3 925 F.2d 1160, 1161-62 (9th Cir. 1991). 4 cannot order the state court or any other state official to 5 provide Petitioner with the missing volume of the transcript, 6 assuming such portion of the trial was in fact transcribed. 7 In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying 8 petition for writ of mandamus that would order state trial court 9 to give petitioner access to certain trial transcripts which he 10 United States District Court For the Northern District of California 1 sought in preparation for filing state post-conviction petition; 11 federal court may not, as a general rule, issue mandamus to a 12 state judicial officer to control or interfere with state court 13 litigation). 14 See Demos v. U.S. District Court, Consequently, this Court See However, a state’s failure to provide a full record of a 15 trial may violate a defendant’s due process rights and form the 16 basis for federal habeas corpus relief. 17 F.2d 646, 648 (9th Cir. 1989). 18 determination: (1) the value of the transcript to the defendant in 19 connection with the appeal or trial for which it is sought; and 20 (2) the availability of alternative devices that would fulfill the 21 same functions as a transcript. 22 petitioner must establish prejudice from the lack of recordation 23 to be entitled to habeas corpus relief. See Madera v. Risley, 885 Two criteria are relevant to this See id. A federal habeas See id. at 649. 24 If Petitioner intends to assert a claim in the present 25 petition for the violation of his right to due process based on 26 his inability to obtain a portion of the trial transcript, he can 27 do so only after he has exhausted state remedies as to that claim 28 in state court and then moves to lift the stay and amend the 2 1 2 present petition to include all of his exhausted claims. Accordingly, Petitioner’s motion to have this Court direct 3 the California superior court to provide him with his trial 4 transcripts or, alternatively, to grant summary judgment in his 5 favor, is DENIED. 6 This Order terminates Docket no. 5. 7 IT IS SO ORDERED. 8 9 Dated: 12/28/2012 CLAUDIA WILKEN United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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